Employment Edit: 16 May 2024

EHRC guidance on duty to prevent sexual harassment

The EHRC has indicated that it will consult this summer on planned changes to its technical guidance on sexual harassment and harassment at work. The changes will account for the new duty on employers to take reasonable steps to prevent sexual harassment in the workplace, which will come into effect on 26 October 2024.

Once the new duty is in force, the EHRC will have powers to enforce it and tribunals will be able to uplift awards of compensation in relevant cases by up to 25% where an employer has failed to take the necessary reasonable steps to prevent the sexual harassment. The updated technical guidance, the final version of which is expected to be published in September 2024, will therefore be a must-read for all employers. In the meantime, click below to read our article exploring how employers can prepare for the new duty.

On a separate but related note, the Labour party also recently announced its intention (if elected) to introduce legislation to protect interns and volunteers from sexual harassment.

Individual liability for discrimination

Where acts committed by individual respondents in the course of their employment are found to be discriminatory and meet the test for individual liability, those individuals are liable regardless of whether the employer is also found to be vicariously liable for their discriminatory conduct.

The claimant, a newly qualified teacher, brought a disability discrimination claim against the school, her mentor teacher and the headteacher. The tribunal upheld claims against the school arising from an email sent by the mentor teacher and a comment in a report completed by the headteacher. However, it dismissed the equivalent claims against the mentor teacher and headteacher because it found that their acts were misguided attempts to address a complex situation.

On appeal, the EAT held that the tribunal did not have discretion to decide not to hold the individual respondents personally liable – where it has found (as it had in this case) that a discriminatory act took place in the course of the individual’s employment and the act amounts to a breach of the Equality Act 2010 by the employer, the tribunal is bound to find that the individual is liable. There is a statutory defence to this (broadly, where the individual reasonably relies on a statement by the employer that the act is not in breach of discrimination protections), but it did not apply in this case. The question of whether the employer is also vicariously liable for those acts (as it was in this case) is not relevant – the employer’s liability does not take away the individuals’ liability.

(Baldwin v Cleves School and others)

WorkWell pilots

Last week, the government announced new ‘WorkWell’ pilots that are set to be rolled out in 15 areas in England from October this year. These pilots, which will be available to those with health conditions or disabilities, aim to provide better connections with existing local support services, such as physio and counselling. Support will also be available to identify workplace adjustments that would help the individual stay in, or return to, work.

With sickness absence rates reportedly at their highest level for a decade, the WorkWell scheme is part of a wider package of welfare reforms designed to help those with health conditions or disabilities look for, or remain in, work. WorkWell will be a voluntary scheme and individuals will be able to self-refer, or be referred by their employer, GP or other local services.

Volunteer was a ‘worker’ when entitled to remuneration

The EAT has considered the question of whether a volunteer was a ‘worker’ when carrying out activities which attracted a right to remuneration.

The claimant volunteered for the respondent’s coastguard rescue service (CRS). The volunteer handbook stated that the relationship was a “voluntary two-way commitment where no contract of employment exists”. The documentation also included provisions stating that volunteers were expected to comply with a code of conduct and maintain competence (including through training), and that failure to follow the code may result in termination of membership of the CRS. Importantly, volunteers were also entitled to remuneration for some activities.

After his membership of the CRS was terminated following a disciplinary hearing, the claimant issued a claim arguing that the respondent had breached his right to be accompanied at that hearing. To be eligible for this claim, he needed to show he was a ‘worker’. At first instance, the tribunal held that the claimant was not a worker, in part because there was no automatic right to remuneration for any activities.

On appeal, the EAT stated that it was not relevant that volunteers needed to submit a claim for remuneration and that many volunteers had not done so – the right to remuneration was the important factor. Taking this and the remainder of the documentation into account, the EAT determined that the claimant was a worker when he carried out activities for which he was entitled to remuneration. However, the EAT did not reach a finding in relation to time spent carrying out activities for which there was no entitlement to remuneration – whether the claimant was a worker at those times remains an open question for the tribunal.

(Groom v Maritime and Coastguard Agency)